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Tuesday, September 16, 2014

As I wrote last time, The Florida Bar's member poll supported retention of the three Second District Court of Appeal (DCA) judges who will be on Collier voters' ballots in November. Specifically, they support retention of:

Chris W. Altenbernd by 95 percent.

Morris Silberman by 94 percent.

Daniel H. Sleet by 91 percent.

While Googling Judges Silberman and Sleet turned up nothing of note, I learned that Judge Altenbernd wrote the minority dissenting opinion when the majority of the Second DCA asked the Florida Supreme Court last month to rule on the constitutionality of Florida's same-sex marriage ban. I wanted to know more about this so I could decide if it was relevant to my voting decision.

The [Second DCA's] request … puts the Florida Supreme Court in the position of deciding whether to take up the issue after five recent state and federal court decisions found that the voter-approved prohibition against same-sex marriage is unconstitutional.

The appeals court made the request in a 10-3 ruling in a case involving the divorce of Mariama Monique Changamire Shaw and Keiba Lynn Shaw, a lesbian couple married in Massachusetts in 2010. Hillsborough County Circuit Judge Laurel Lee refused to grant the couple a divorce because state law bans same-sex marriages.

The couple appealed Lee's ruling and asked the 2nd District Court of Appeal to “pass through” the case to the Supreme Court. A panel of the appellate court originally refused but, in an unusual twist, the full court revisited the case, resulting in Wednesday's ruling….

In it's opinion, the majority of the Second DCA judges decided to “pass through” the matter to the Florida Supreme Court because “the issues pending are of great public importance and will have a great effect on the proper administration of justice throughout the state.”

Judge Altenbernd, joined by two other judges, neither of whom is up for merit retention this year, dissented, writing that:

Under article V, section 3(b)(5) of the Florida Constitution, the supreme court's jurisdiction to accept cases passed through from the district courts without a disposition is restricted to a very limited group of cases. The judges of this court must certify that such a case requires “immediate” resolution and that the “order” on appeal presents issues of “great public importance” or is an order that will have "a great effect on the proper administration of justice throughout the state…. Although this case is of importance to these parties, I cannot agree that this case is a proper subject for pass through….

It is important to understand that the issue in this case is not whether Florida is constitutionally compelled to marry same-sex couples…. [T]he narrow, dispositive issue in this case is whether Florida … must give credit to these lawful out-of-state marriages for the purpose of dissolution. Given that same-sex marriages are a recent development in other states, I am not convinced that Florida's courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution. I cannot certify that this order will have “a great effect on the proper administration of justice throughout the state” requiring immediate review in the supreme court.

… this issue does not seem to me to be one that this court cannot handle on appeal or that we should present to the supreme court as a matter ready for immediate resolution…. I am confident that this court can ably consider this appeal and reach a proper resolution. Our decision will resolve the issue for all trial courts in Florida unless another district court disagrees with us…. This issue, unlike the constitutionality of the ban on same sex marriage, may never require the attention of the supreme court….

The Supreme Court subsequently refused to hear the case, siding with Altenbernd and his minority and no doubt disappointing gay right advocates, who (according to the Kam article) hoped the Supreme Court would take up the case and “send a signal to other appellate courts to also expedite their cases.”

Should Altenbernd's dissent in this case affect my vote on his merit retention, given that I'm a supporter of same-sex marriage and would have perferred the Supreme Court to have taken the case? After discussion at length with a close friend whose opinion I value greatly, I've concluded that it should not.

For one thing, said my friend, all Altenbernd was saying was that as a practical matter the case did not meet the Consitutional requirements for the “pass through” as it was not a matter of “great public importance” or one that will have “a great effect on the proper administration of justice throughout the state.”

Further, as Altenbernd pointed out in his dissent, no court had yet considered the constitutional arguments or made an express constitutional ruling about the legality of a Florida divorce for an out-of-state, same-sex marriage. A lower court (“This court”) should first hear those arguments and rule on the case.

And importantly, my friend said, judicial elections are nonpartisan for a reason: voters should be looking for people who will impartially interpret the law. Their personal views on social issues are beside the point.

I've decided my friend is right … although to his last point, I don't think that's how the world works anymore.

I'm not a lawyer, but after reading the majority opinion and Altenbernd's dissent, I think Altenbernd made a good case. So did all seven members of the Supreme Court, who unanimously declined to hear the case “for the reasons set forth in Judge Altenbernd's dissent” and sent the case back to the Second DCA “for further proceedings.”

So after all that, I've concluded that Judge Altenbernd's dissenting opinion in the case is NOT relevant to my decision on his merit retention.

I will vote FOR the retention of Judges Altenbernd, Silberman and Sleet on November 4.

Sunday, September 14, 2014

Last week, in On to November, I reviewed the items that will be on my ballot for the November 4 election. In this post, I’ll consider the three District Court of Appeals merit retention questions on the ballot.

As I learned when I wrote Voting for Judges: Where to Begin?, in Florida, appellate court (i.e. Supreme Court and District Courts of Appeal) judges are appointed by the governor from lists submitted by Judicial Nominating Commissions, which screen candidates and make recommendations.

Justices and appeals court judges face the voters in merit retention elections every six years – except after their first appointments. Newly appointed justices and appeals court judges serve an initial term of at least one year and are then subject to the first merit retention reviews of their performances in the next General Election.

Only those judges receiving approval from a majority of the voters in the General Election may continue in office for another six-year term. If voters choose not to retain a judge, a vacancy would be created and would be filled through the merit selection process through which the governor would appoint one from three to six nominees submitted by a judicial nominating commission. Terms are staggered so that not all of the appellate judges face the voters in the same election.

This year, 22 of Florida’s 61 appeals court judges who are either completing their first year or approaching the end of their terms will be on the ballot; no Supreme Court justices are on the ballot.

The Florida Bar has produced pamphlets for each district court with biographies provided by the judges who will be on the ballot. Included about each judge are birth year, birth place, family, degrees, legal offices and positions, bar offices and activities, other civic activities, honors and awards, and publications. Sure makes a voter’s life easier than if she had to do the research herself!

I reviewed the Florida Bar pamphlet for the Second District Court of Appeal (DCA), which includes Collier County. The three judges whose merit retention will be on Collier voters’ ballots are Chris Altenbernd, Morris Silberman and Daniel Sleet. All three judges’ bios’ are impressive. Highlights, based solely on what interested ME, are as follows:

It seems to me that, absent some sort of public scandal, lawyers and members of the legal profession are in the best position to evaluate a judge’s suitability for retention. Fortunately, The Florida Bar makes it easy to get that input. They mailed a ballot to 70,467 Florida Bar members residing and practicing in Florida regarding each of the judges subject to merit retention vote in November, and published the results earlier this month (“Florida Bar Poll Shows Overwhelming Support for Appellate Judges in Merit Retention Elections”).

Over 5,200 lawyers participated, and “only responses by lawyers indicating considerable or limited knowledge of the judges were included in the poll results.”

In the press release, Florida Bar President Gregory W. Coleman attributed the “overwhelming support” to the fact that “Florida’s merit selection/retention process – in which judicial nominating commissions screen candidates and make recommendations to the governor who appoints the judges – does a top-notch job of finding attorneys who are extremely qualified to serve as appellate jurists.”

For the three Second DCA judges on Collier voters’ ballot, the poll results indicate support for retention of:

Chris W. Altenbernd by 95 percent.

Morris Silberman by 94 percent.

Daniel H. Sleet by 91 percent.

As a final “due diligence” step, I Googled each of the judges’ names. Googling Judge Silberman and Judge Sleet turned up nothing of note. With Judge Altenbernd, I was surprised to come across something that might be relevant to my decision: he wrote the minority dissenting opinion last month when the Second DCA asked the Florida Supreme Court to rule on the constitutionality of Florida’s same-sex marriage ban.

In order to figure out whether this was relevant to my decision (and mindful of my responsibility to my readers to do the digging on their behalf), I delved into the matter.

Stay with me – I’ll let you know what I learned and what I decided in my next post.

There will also be three District Court of Appeal judicial retention elections to vote on, and three seats on the Marco Island City Council, for voters in that city.

Between now and the start of early voting, I’ll be looking at many of these elections and issues and sharing how I will vote. I will not be looking at the Community Development or Marco Island City Council races since I don’t live in any of those areas and don’t know the issues.